Floorwise Australia Pty Ltd v Wallace
[2024] NSWPICMP 399
•24 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Floorwise Australia Pty Ltd v Wallace [2024] NSWPICMP 399 |
| APPELLANT: | Floorwise Australia Pty Ltd |
| RESPONDENT: | Paul Wallace |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 24 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; lumbar spine assessments; appeal by the employer alleged Medical Assessor failed to make a deduction under section 323 and sought a deduction of one-third to two-thirds be made by the Medical Appeal Panel (MAP); Held – the pre-existing condition has contributed to the overall level of permanent impairment assessed and the MAP considers that a deduction of one-tenth should be made to take account of the pre-existing condition’s contribution to the overall level of permanent assessed and that a deduction of one-tenth is not at odds with the available evidence; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
The Personal Injury Commission (Commission) appointed two Medical Assessors to assess the whole person impairment (WPI) resulting from injury on 6 November 2018.
Professor Christopher Grainge, respiratory specialist was appointed as lead Medical Assessor and was appointed to assess respiratory system impairment. Tim Anderson, occupational physician was appointed as non-lead Medical Assessor to assess lumbar spine and scarring impairment.
On 12 March 2024 the employer George Weston Food Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute appealed against was assessed by Dr Tim Anderson, the non-lead Medical Assessor, who issued a Medical Assessment Certificate (MAC), on 13 February 2024 which was consolidated with the assessment of the lead Medical Assessor. The lead Medical Assessor issued a consolidated medical certificate on 13 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request that the worker undergo a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel notes the respondent worker asked for a re-examination if the appeal was to proceed and asked that impairment of the lumbar spine and scarring be assessed on re-examination including the deductible component under s 323 of the 1998 Act.
Whilst the Appeal Panel found error for reasons set out below, it did not require the worker undergo a re-examination as there was sufficient material before the Appeal Panel for it to make a determination. It is further noted that the examination findings of the Medical Assessor were not in fact the subject of complaint on appeal despite the respondent worker asking for a re-examination to assess impairment.
It is noted that the respondent worker simply stated that request without any submissions as to why the overall WPI prior to any deduction under s 323 was assessed in error by the Medical Assessor. A re-examination was not considered necessary by the Appeal Panel.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
“I am one of the Medical Assessor involved in the above matter and the following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
06/11/18
•
Body parts / systems referred:
Lumbar spine
Scarring
•
Method of assessment:
Whole Person Impairment”
The Medical Assessor made an assessment as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Lumbar spine | 06/11/18 | Chap 4 P 24 P 29 T 4.2 | P 384 T 15-03 | 27 | 0 | 27 | |
| Scarring | P 74 T 14.1 | 2 | 0 | 2 | |||
The non-lead Medical Assessor referred his assessment to specialist respiratory physician, Dr Christopher Grange as lead Assessor for issue of a consolidated Medical Assessment Certificate.
The lead Medical Assessor issued as consolidated MAC as follows:
| Name of Medical Assessor | Body Part or System | Date of Injury | Chapter, Page and Paragraph number in NSW workers compensation guidelines | Chapter, Page, Paragraph Figure and Table numbers in AMA5 Guides | % WPI | %WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 7) |
| Prof Christopher Grainge | Respiratory | 6/11/18 | Chapter 5 | Chapter 5 Chapter 13 Table 13-4 | 5 | 0 | 5 |
| Dr Tim Anderson | Lumbar spine | 6/11/18 | Chap 4, p24,29, T 4.2 | P384 t15.03 | 27 | 0 | 27 |
| Dr Tim Anderson | Scarring (TEMSKI) | 6/11/18 | P74, t 14.1 | 2 | 0 | 2 | |
| Total % WPI (the Combined Table values of all sub – totals) | 32% | ||||||
The employer appealed. There was no appeal from the assessment of the respiratory system. There was no appeal from the assessment of the overall impairment of 27% WPI for the lumbar spine or scarring at 2% WPI. The appeal is limited to the deductible proportion under s 323 of the 1998 Act.
The Medical Assessor made no deduction under s 323 for pre-existing condition, injury or abnormality and the failure to make a deduction is the subject of complaint on appeal.
The appeal concerns only the deductible proportion under s 323 applied by the Medical Assessor. The Medical Assessor made no deduction in circumstances where this was not adequately explained given the evidence about the pre-existing condition of the back that was before the Medical Assessor. The appellant submitted on appeal that a deduction in the order of one-third to two thirds should have been made.
In summary, the respondent’s primary submission was that the Medical Assessor did not make a demonstrable error in making no deduction and the MAC should be confirmed. In the alternative the respondent submitted that if the Appeal Panel was to make any deduction, it should be one-tenth.
The Medical Assessor recorded the history relating to injury as follows: (emphasis in original)
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Wallace related that on 06/11/18, he slipped and fell on some steps. This resulted in severe pain in his lower back radiating down his left leg.
He did his best to manage the condition conservatively but the condition deteriorated further and he was referred to Specialist Orthopaedic Surgeon, Dr Michelle Atkinson. It was identified that a laminectomy would be appropriate. This was agreed and went ahead on 09/04/19. He returned to work a month or two after this. Unfortunately his condition deteriorated. He described his disappointment when he tried to approach Dr Michelle Atkinson again but did not seem to get anywhere. He had a lot of physiotherapy, work with an Exercise Physiologist and aquatics work. Unfortunately, his condition continued to deteriorate.
He subsequently came under the care of Specialist Neuro-surgeon, Dr Yianni Sergides. After a lot of consideration, it was considered appropriate to carry out a fusion at the L4/5 level. This was agreed. This was a complicated procedure, necessitating an anterior approach which was conducted on 30/11/20 with assistance from a Vascular Surgeon. Several days later, on 02/12/20 a posterior stabilisation procedure was conducted. Mr Wallace advised that this procedure did give him some limited improvement, although as time has gone on, the effects of this seem to be progressively less. He also believes that there has been some tethering of nerves due to scar tissue with continuing irritation down both legs, more prominently on the left side.
Unfortunately, there was the development of a spigelian hernia, thought to be associated with the abdominal approach for this procedure. This was further complicated since Mr Wallace and his family left New South Wales and moved up to Queensland in January 2021. The spigelian hernia was managed by a surgical repair with appropriate mesh reinforcement on 28/04/21. This seems to have given him a reasonable result.
His other clinical management has included pain management injections.
· Present treatment:
He takes analgesics, anti-inflammatories and CBD oil. He is also on diazepam. He tries to do a lot of aquatics work as well.
· Present symptoms:
Lower back pain with predominant radiation down the left leg and to a lesser extent, the right. There is associated numbness, particularly down the left side.
His mobility is limited and he can only manage steps and stairs singly.
· Details of any previous or subsequent accidents, injuries or condition:
There is no history of any previous condition of his lower back.
· General health:
Other than the points raised in this report, there has been nothing else.
· Work history including previous work history:
Mr Wallace originally comes from the UK. He came out to Australia initially in 2008 and then finally migrated in 2010 or 2011. In the UK he had worked in a supermarket bakery, then had pursued an apprenticeship in floor laying. When he came to Australia, he set up his own self-employed business in this field. He has continued through to the time of this accident. He did his best to continue managing his company but eventually, in 2020, this apparently ceased. Since then, there has been no further work, nor any further training for work.
· Social activities/ADL:
Mr Wallace has a de facto wife, who is fit and well. She is working in government administration. They have two boys aged 13 and 10. He mentioned that the oldest lad had ADHD, although seems to be high functioning.
He is a non-smoker. He enjoys a few drinks.
He has an interesting hobby in keeping tropical saltwater and also freshwater fish. He tries to do some walking. They have a couple of dogs. He is able to drive for about half an hour. He employs somebody to cut the grass.
He does his best to help at home but reckons he can only do about 10% of what he used to be able to manage. He is able to assist with the shopping.”
The Appeal Panel notes that the Medical Assessor recorded a history that there was no previous condition of his lower back. The Appeal Panel notes this history inconsistent with the other evidence before the Medical Assessor which shows a clear history of low back pain prior to injury, a referral for specialist opinion and advice that he may require surgery.
The Medical Assessor recorded the findings on physical examination which were not the subject of complaint on appeal as follows:
“Mr Wallace was quite tall, with a height of 1.88m. His weight was 104kg. He advised that it had been heavier and he is doing his best to reduce this. With these parameters, he currently has a body mass index of 29. This is just under the lower limit of the technical category of “obese”. The upper level of healthy BMI is 25. In order to achieve this, he should be no more than 88kg. He was in a lot of discomfort with his lower back.
Back. There was a lot of pain over the lumbar spine throughout its length, with associated tenderness. The spinal curvatures were normal. There was no scoliosis or muscle spasm.
On forward flexion he could reach his lower thighs with a McRae-Wright movement of 4cm. This is a little short of the lower limit of normal, which is 5cm. Extension was minimal. Lateral flexion to each side was grossly reduced to one-third of the normal range. Lateral rotation to each side was a little better, at two-thirds of the range.
Lower Limbs. He walked with a slight left sided limp. He could stand on his heels and toes but could not walk on them and could not squat.
The right leg was 1cm shorter than the left. The left thigh and calf were each 2cm less in circumference than the right.
No significant features were identified with the hips. At the knees there was slight genu varus on the left side with degenerative changes and associated swelling.
At the ankles there was pronation on the left side.
Sensation to pinprick was reduced on the lateral part of both sides, indicating probable involvement of S1 bilaterally. On the left side there was further reduction in sensation over the dorsum of the foot, although to a lesser extent, indicating involvement of L5. On the medial side of the left foot there was slight reduction in sensation, indicating probable involvement of L4.
Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
Straight leg raising was conducted in the sitting position on the edge of the couch. He was just about to manage full extension on the right but lacked the last 20° on the left, indicating a positive sciatic stretch sign.
Abdomen. The mid-line abdominal scar had healed, although was a little widened and very obvious. There was some tethering, alteration of contour and also of pigmentation. This area was a little tender, as was the area to the left where the spigelian hernia had developed.”
The Medical Assessor reviewed the special investigations as follows:
DATE
INVESTIGATION
RESULTS
05/02/19
MRI scan lumbar spine
Posterior protrusion at L4/5.
25/10/19
Posterior protrusions at L4/5 and to a lesser extent, L1/2.
24/11/23
Fusion at L4/5 following anterior and posterior approaches. The possibility of arachnoiditis has been raised.
The Medical Assessor summarised the injury and diagnosis as follows:
“Mr Wallace sustained an injury to his lower back with initial radiation down his left leg associated with a fall down some steps in early December 2018. It was identified that there was discogenic pathology at the L4/5 articulation. This was initially managed by a discectomy, which unfortunately did not give him a consistent beneficial result.
Later, a fusion at this articulation was conducted, which involved an anterior approach and several days later, a posterior approach. This gave him limited improvement, although at this assessment it was evident that he continues to have significant radiculopathy, particularly down the left leg.
A further complication has been the development of a spigelian hernia on the left. This was surgically repaired satisfactorily.
At this assessment he continues to have gross dysfunction of his lower back and as advised, there is continuing radiculopathy down the left leg.
· Consistency of presentation:
Mr Wallace’s presentation was consistent.”
In completing the MAC the Medical Assessor is required to address the following question which he answered in the negative:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No.”
The Medical Assessor outlined the facts on which his assessment was based as follows:
“The facts on which I have based my assessment of whole person impairment:
Detailed review of the file.
Detailed clinical assessment.
Review of the investigations.”
The Medical Assessor explained his impairment assessment as follows:
“An explanation of my calculations:
Lumbar Spine. This is addressed in AMA 5 Page 384, Table 15-03. There has been fusion at the L4/5 articulation. This places Mr Wallace into DRE Lumbar Category IV, which provides a baseline whole person impairment of 20%. For the activities of daily living there is a further 2%, giving 22%. With further modification from the SIRA Guidelines, he has the following features from SIRA Page 29, Table 4.2:
FACTOR
% WPI
Radiculopathy
3
Second surgery anterior approach
2
Third surgery posterior approach
1
Fourth surgery hernia repair
1
Those combined levels are 7%. This is combined with the earlier 22%, giving 27%.
Scarring. This is addressed in the SIRA Guidelines Page 74, Table 14.1. With any kind of abbreviated clothing, which is common in Queensland and particularly when he does quite a lot of aquatics work wearing swimming gear, the abdominal and posterior scars are very obvious. He is quite conscious of these. There is some tethering of the anterior scar with alteration of contour and pigmentation. The area is also a little tender. No further treatment is warranted and the scarring does not alter his activities of daily living. With these features, it is assessed that he has a further 2% for the scarring.”
The Medical Assessor made brief comment on the other medical evidence and other evidence before him as follows:
“My assessment is very similar to the assessment of Specialist Orthopaedic Surgeon, Dr Hugh English in his report of 16/01/23. The only difference is the way the whole person impairments have been accumulated. The features in the Modification Table 4.2 in the SIRA Guidelines Page 29 should be combined and this total then combined with the baseline following DRE IV. It looks as though these individual features have been separately combined, which naturally gives a rather elevated whole person impairment.
Specialist Orthopaedic Surgeon, Dr Frank Machart in his series of reports of 23/01/23, 23/03/23 and 25/05/23 has the same baseline figure of DRE IV with 2% for the activities of daily living, with which I would agree. He only applies another 2% for the second surgery without the other features identified by both Dr Hugh English and myself in the Modification Table. Dr Machart also deducts two-thirds. I am not persuaded that this is appropriate.”
The Appeal panel notes that the Medical Assessor simply does not refer to the fact that
Dr English made a one-tenth deduction under s 323.The Appeal Panel notes that the Medical Assessor’s explanation for not agreeing with the two-thirds deduction made by Dr Machart, the Independent Medical expert (IME) qualified to provide an opinion on behalf of the appellant, is limited to stating that he is not persuaded this is appropriate.
The Medical Assessor fails to refer to the workers own statement about being troubled by back pain prior to injury and seeking treatment and fails to refer to any of the clinical notes evidencing consultations for back pain prior to injury.
The Medical Assessor then went on to state that there was no pre-existing condition which would necessitate the application of any deduction as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
There has been no pre-existing condition which would necessitate the application of any deduction.”
The appellant complained on appeal that the reasons for making no deduction were inadequate and a deduction of one-third to two thirds should have been made. The respondent submitted that the Medical Assessor was correct to make no deduction and that his reasons were sufficient.
A deduction under s 323 can only be made if a pre-existing condition has contributed to the overall level of permanent impairment assessed. The MAC must be read as a whole. Even when the MAC is read as a whole, it is clear that the Medical Assessor has not properly considered the evidence that was before him in respect of the pre-existing condition of the lumbar spine. He makes no real reference to the evidence before him such that it could be considered that there is an adequate path of reasoning to support the failure to make a deduction under s 323 in this case.
Dr English, the IME qualified to provide an opinion on behalf of the worker, made a deduction of one-tenth and the Medical Assessor simply makes no reference to this. Whilst a Medical Assessor is not required to refer to every piece of evidence, in circumstances, as in this case, where the issue of the deductible proportion is a fundamental aspect of the medical dispute between the parties because both IMEs qualified on behalf of the parties made a deduction and given the evidence before the Medical Assessor about the pre-existing condition of the back, something more considered and supported by reasoning is required rather than mere bold statements that there is no deductible proportion.
A s 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed.
Here there is clear evidence that the respondent was symptomatic prior to injury. He had a history of low back pain prior to injury. He consulted his general practitioner (GP) about his back pain on a number of occasions prior to injury. His GP referred him for specialist opinion prior to injury. Indeed a CT scan in March 2018 (some eight months prior to injury in November 2018) identified an L4/5 disc protrusion and encroachment of the left L5 nerve root. This is the same level ultimately operated on after injury, being a fusion at L4/5 and upon which the assessment of WPI is based.
The contribution of the prior condition of the back must be taken into account because it has contributed to the overall level of permanent impairment assessed. The Medical Assessor has not done this and his reasons for not doing so are inadequate, particularly in circumstances where the IME qualified on behalf of the worker, Dr English, made a deduction of one-tenth and the Medical Assessor failed to explain why his opinion differed and indeed did not even refer to the making of this deduction by Dr English.
The pre-existing condition has contributed to the overall level of permanent impairment assessed and the Appeal Panel considers that a deduction of one-tenth should be made to take account of the pre-existing condition’s contribution to the overall level of permanent assessed and that a deduction of one-tenth is not at odds with the available evidence.
Application of a one-tenth deduction to 27% WPI is 24% WPI. There is 2% for scarring, which provides a 26% WPI when combined using the combined values table AMA5 Page 604-606.
When combined with the 5% WPI assessed for the respiratory system, there is a total WPI of 30%.
Accordingly, the MAC will be revoked and a new consolidated MAC will be issued as follows:
| Name of Medical Assessor | Body Part or System | Date of Injury | Chapter, Page and Paragraph number in NSW workers compensation guidelines | Chapter, Page, Paragraph Figure and Table numbers in AMA5 Guides | % WPI | %WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 7) |
| Prof Christopher Grainge | Respiratory | 6/11/18 | Chapter 5 | Chapter 5 Chapter 13 Table 13-4 | 5 | 0 | 5 |
| Dr Tim Anderson | Lumbar spine | 6/11/18 | Chap 4, p24,29, T 4.2 | P384 t15.03 | 27 | 1/10th | 24 |
| Dr Tim Anderson | Scarring (TEMSKI) | 6/11/18 | P74, t 14.1 | 2 | 0 | 2 | |
| Total % WPI (the Combined Table values of all sub – totals) | 30% | ||||||
For these reasons, the Appeal Panel has determined that the consolidated MAC issued on
13 February 2024 should be revoked, and a new consolidated MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7239/23 |
Applicant: | Paul Wallace |
Respondent: | Floorwise Australia Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the consolidated Medical Assessment Certificate of lead Medical Assessor Grainge and issues this new consolidated Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Name of Medical Assessor | Body Part or System | Date of Injury | Chapter, Page and Paragraph number in NSW workers compensation guidelines | Chapter, Page, Paragraph Figure and Table numbers in AMA5 Guides | % WPI | %WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 7) |
| Prof Christopher Grainge | Respiratory | 6/11/18 | Chapter 5 | Chapter 5 Chapter 13 Table 13-4 | 5 | 0 | 5 |
| Dr Tim Anderson | Lumbar spine | 6/11/18 | Chap 4, p24,29, T 4.2 | P384 t15.03 | 27 | 1/10th | 24 |
| Dr Tim Anderson | Scarring (TEMSKI) | 6/11/18 | P74, t 14.1 | 2 | 0 | 2 | |
| Total % WPI (the Combined Table values of all sub – totals) | 30% | ||||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
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